| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2017] NZERA Auckland 261 |
| Hearing date | 4-Aug-17 |
| Determination date | 31 August 2017 |
| Member | A Fitzgibbon |
| Representation | ADJ MacKenzie (in person) ; E Reilly |
| Location | Rotorua |
| Parties | MacKenzie v Independent Security Consultants Ltd |
| Summary | UNJUSTIFIED DISADVANTAGE - UNJUSTIFIED DISMISSAL - Serious Misconduct - Applicant claimed unjustifiably dismissed by respondent - Applicant claimed unjustifiably disadvantaged by suspension - Communications Operator |
| Abstract | AUTHORITY FOUND -;UNJUSTIFIED DISADVANTAGE: Respondent did not investigate applicant’s alleged intention to breach restraint of trade. Applicant not consulted or given opportunity to respond before suspension. Suspension without pay was not action of fair and reasonable employer. Applicant unjustifiably disadvantaged. REMEDIES: No contributory conduct. Respondent to pay applicant reimbursement of lost wages for period of suspension, quantum to be determined. $5,000 compensation appropriate.;UNJUSTIFIED DISMISSAL: At the time of dismissal applicant was not employed by another company. Respondent assumed applicant was going to breach restraint of trade. Respondent refused to discuss issue with applicant’s lawyer. Respondent not active and constructive or responsive and communicative. Dismissal unfair substantively and procedurally. Dismissal unjustified. REMEDIES: Respondent to pay applicant $4,085 reimbursement of lost wages. $10,000 compensation appropriate. |
| Result | Applications granted ; Compensation for humiliation etc ($5,000 - disadvantage)($10,000 - dismissal) ; Reimbursement of lost wages (quantum to be determined - disadvantage)($4,085 - dismissal) ; No order for costs ; Disbursements in favour of applicant ($71.56) |
| Main Category | Personal Grievance |
| Statutes | ERA s3 ; ERA s4(1A)(b) ; ERA s103(1)(b) ; ERA s103A ; ERA s103A(3) ; ERA s114 ; ERA s124 ; ERA s128(2) |
| Cases Cited | BP Oil New Zealand Ltd v Northern Distribution Union [1992] 3 ERNZ 483 (CA);Birss v Callahan [1984] 1 NZLR 513 (CA);Pottinger v Kelly Services (New Zealand) Ltd [2012] NZEmpC 101, [2012] ERNZ 411 |
| Number of Pages | 19 |
| PDF File Link: | 2017_NZERA_Auckland_261.pdf [pdf 283 KB] |